HKSAR v. YU CHING

[English Translation – 英譯本]

HCMA 420/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 420 OF 2006

(ON APPEAL FROM KCS NOS. 25174 & 25175 OF 2005)

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BETWEEN

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JUDGMENT

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Background

1. The Appellant faced two summonses for failing to comply with an order issued by the Buildings Department for the demolition of unauthorized structures at the subject premises and reinstatement of the subject premises.  She pleaded not guilty and was convicted after trial.  She now appeals against conviction.

2. The present case involves a continuous incident which allegedly took place from 9 September 2004 to 30 August 2005.  The relevant legislation was amended and the new Ordinance came into effect on 31 December 2004.  The amendments related to a re-numbering of the relevant section (i.e. renumbering section 40(1B)(b) as 40(1BA)) and an increase in the penalty.  In light of this technical issue, the prosecution severed this continuous incident into two separate time periods and prosecuted with two summonses.

Prosecution case

3. Put simply, the prosecution case was that there was an unauthorized structure on the roof to which the Appellant had title.  On 18 August 2004, the Buildings Department issued the relevant demolition and reinstatement order and required the owner to comply with the order within 21 days.  The Appellant neither demolished the unauthorized structure nor reinstated the subject premises within 21 days.  On 15 October 2004, representatives of the Buildings Department inspected the subject premises and found that the unauthorized structure was still intact on the premises.

Defence case

4. The defence did not deny that the relevant unauthorized structure was still on the roof, but explained that the exhaust pipe of the building emitted a bad smell which was bad for health.  Although the builder had, in response to her complaint, heightened and relocated the exhaust pipe, the situation was worsened rather than improved.  Thereafter, the builder erected a venetian screen to block the smell, but this did not bring about any improvement.  The Appellant’s husband then erected a cover and a movable glass window at the top and rear part of the venetian screen, and the situation improved.  The defence also called an expert witness to give evidence.

5. The defence claimed that the Appellant had a reasonable excuse for not demolishing the unauthorized structure.

6. The defence further submitted that the relevant “order” was ultra vires.

The Magistrate’s ruling

7. After detailing the facts of the case, the Magistrate ruled that the relevant “Order” was not ultra vires and that the Appellant did not have a reasonable excuse.  The Magistrate accordingly convicted her of the offence as set out in the two summonses.

Grounds of appeal

8. Mr Cheung, Counsel for the Appellant, has raised two grounds of appeal:

(1) the order of the Buildings Department was unclear, ultra vires and unfair to the Appellant;

(2) the Appellant had a reasonable excuse.

Ground (1)

9. Mr Cheung cited the following contents of the relevant order:

“… building works have been carried out in and at the premises …

2.    The said building works comprise a structure erected on roof above the flat.

3.    In exercise of the powers vested in me under section 24(1) of the Buildings Ordinance, I hereby order you to:-

(a)   demolish the said building works described in paragraph 2; and

(b)   reinstate the part(s) of the building so affected by the building works in accordance with the plans approved by the Buildings Department.

…”

10. As regards “a structure erected on roof above the flat” as cited above, Mr Cheung submitted that the order was too wide, too general and had not clearly specified the parts which the Appellant was required to demolish and reinstate.  He claimed that a closer analysis would reveal that the Appellant had only added a cover and a glass window at the back of the venetian screen, and the remaining alterations were actually made by the developer.  As the order of the Buildings Department was too broad and general, the Appellant would not satisfy the order if she only dealt with the alterations she had made; but in order to satisfy the order, she would have to deal with more alterations than what she was responsible for, some of which would involve common areas or facilities, and that would be unfair to her.  Mr Cheung submitted that, under such circumstances, the order of the Buildings Department should have been directed at the developer.

11. On the question of whether the order of the Buildings Department was legal and intra vires, Mr Cheung contended that the Magistrate wrongly construed the term “demolish” to include “reinstate”.  He claimed that the Chinese meaning of the term “demolish” (拆卸) did not include “reinstate” (回復原狀).  He also pointed out that it was apparent from the English version of section 24(1) of the Buildings Ordinance that the meaning of “demolition” did not include “reinstatement”.

12. Mr Cheung submitted that the Magistrate erred in making the point that, if “demolish” did not include “reinstate”, the two could be dealt with separately, and the Buildings Department at least had the authority to request demolition.  He contended that the Magistrate should have understood that in fact the order of the Buildings Department dealt with both demolition and reinstatement, and the two could not be severed.  According to the order, it would be against the law if there was only “demolition” without “reinstatement”.  For this reason, the order was ultra vires the Buildings Department and should have been set aside.

13. Mr Cheung submitted that, according to the order of the Buildings Department, the Appellant was required to “demolish” certain alterations that she had not made – parts of which involved common facilities of the building, and to reinstate the premises which had been altered by the developer.  If the Appellant did not fully comply with the order, the Buildings Department could, under section 24(2C) and (3), carry out the relevant works and recover the costs from the owner of the premises.  The order, as it could be seen, was a punitive order.

14. Mr Cheung submitted that, as the terms of the order had an impact on the Appellant’s household and health, they should be interpreted in the strictest sense.  Had the Magistrate correctly interpreted the above terms, he should have been sure that the order was ultra vires the Buildings Department.  Mr Cheung submitted that, if the Appellant was compelled to comply with the order, she would have to shoulder works and costs for which she should not be responsible, she would also have to tolerate the exhaust gas and foul smell and their adverse effect on her health.  Mr Cheung submitted that this was unjust from a legal and logical point of view.

15. Mr Cheung referred to the correspondence between the Appellant and the developer.  On 21 November 2003, the Appellant, in her letter to the developer (Exhibit D1, App. D), mentioned that the openings of the light pit, foul sewer and the pump room on the roof all emitted a bad smell which threatened human life and health.  The Appellant indicated that she would take improvement measures, install some rain eaves at certain locations on the roof and erect a movable window at the bottom of the light pit’s rain eave in order to block the foul smell.

16. On 9 January 2004, the developer replied to the Appellant (Exhibit D1, App. E) that it would carry out the following improvement works:

(1) heighten the sewage pipe;

(2) erect an aluminium ventilating venetian screen on the wall adjoining the neighbouring unit.

17. Mr Cheung also referred to the expert evidence accepted by the Magistrate.  The evidence stated that the exhaust pipe on the roof emitted a bad smell.  The Management Office had erected a screen, re-routed and heightened the exhaust pipe, and also added boards to the exhaust pipe opening at the engine room in order to re-direct the air flow.  However, these measures failed to block the bad smell.  The Appellant had erected a cover (or rain eave) and added a glass window at the back of the venetian screen.  Although it was a passive method, it could block the smell.  The ultimate solution was to relocate and further heighten the sewage pipe.

18. Mr Cheung argued that, on the evidence, the developer had not carried out any further work to resolve the Appellant’s problem.  This accorded with the statement of the Appellant’s husband that he had verbally raised the question with the developer and received the answer that no further steps would be taken.

19. Mr Cheung submitted that the court should consider that, apart from keeping the cover and glass window added, there was not much that the Appellant could do as long as the developer did not take further measures.  The exhaust pipe and screen erected by the developer should be part of the building’s common area and facilities even if they were located on the Appellant’s roof.  Mr Cheung said reference could be made to section 2 of and Schedule 1 to the Building Management Ordinance, Cap. 344.

20. Mr Cheung submitted that, given the ultimate solution to the problem involved those areas and facilities, and in light of the lack of resources and technical problems, the Appellant could, besides urging and waiting for the developer to take further steps, only keep (or temporarily keep) the cover and rain eave to avoid the bad air and its threat to her life and health – in particular, with the outbreak of SARS, the spreading of viruses through exhaust pipes was something that could not be ignored.

Respondent’s reply

21. Mr Wong, Senior Government Counsel for the Respondent, replied that the Magistrate had not erred in the interpretation of section 24 of the Buildings Ordinance, Cap. 123 when dealing with the defence argument that the order issued by the authority was ultra vires.  Having considered the relevant section, the Magistrate ruled that, as the structure in question had altered the original state of the premises, demolition of that structure must include reinstatement of the premises, otherwise it would be meaningless to just demolish the structure without reinstating the premises.

22. Mr Wong submitted that, by virtue of section 24(1)(c) of the Buildings Ordinance, the order could require “such alteration of the building … as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof, and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed.”

23. Mr Wong submitted that the authority’s requirement of “reinstatement” was to cause the building involved in this case to comply with the provisions of the Buildings Ordinance and put an end to the contraventions thereof.  Therefore, the order for demolition of the structure in question and reinstatement of the premises was not ultra vires the Buildings Department.

24. Mr Wong submitted that the argument raised by Counsel for the Appellant – namely that it was unjust for the Appellant to handle more than what she was responsible for in order to satisfy the order – could not justify the Appellant’s non-compliance with the order.  It was open to the Appellant to discuss with the developer on the relevant order through legitimate means.  The Appellant had never contended that the order was not capable of being complied with.

Judgment

25. The relevant unauthorized or erected structure on the roof was described in the agreed facts as follows:

“A metal frame structure was erected over the main roof.  Part of the metal frame was fixed on the existing parapet wall and separation wall.  The entire metal frame on the roof top structure (‘RTS’) was enclosed with existing aluminum [louvers] and covered.  The Defendant did not obtain prior approval from the Building Authority for the construction of the RTS.”

26. The English version of the order reads “a structure erected on roof above the flat” and the Chinese version is「在樓宇的天台加建搭建物」.  The “roof top structure” referred to in the agreed facts was clearly a “structure”.  There is nothing ambiguous in either the English or Chinese version of the order.

27. Section 24 of the Buildings Ordinance provides as follows:

“Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require —

(a)   the demolition of the building, building works, or street works; or

(b)  (Repealed 43 of 1993 s. 6)

(c)  such alteration of the building, building works or street works as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof,

and in every case specify the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed.”

28. As the “roof top structure” in question was an erected structure, the Buildings Department would of course have to order the owner of the relevant premises to demolish it.  On the face of it, “demolition” does not necessarily include “reinstatement”, but there are situations in which it is necessary to “reinstate” the premises after the erected structure is demolished.  For example, if the erected structure was only attached to the original legal structure and its demolition would not cause any damage to the original structure, it would be sufficient to issue a demolition order.  However, if following demolition of the erected structure, the original legal structure would have to be repaired or a structure similar to the original one would have to be newly constructed, it would be necessary to order “reinstatement” in addition to demolition.  Therefore, in requiring the Appellant to demolish the relevant structure and also to “reinstate” the subject premises, the order of the Buildings Department was not ultra vires.

29. Furthermore, Mr Cheung conceded that there was no evidence to support his submission that part of the relevant erected structure was a public facility.  The correspondence between the Appellant and the builder included a letter by the Appellant dated 21 November 2003, in which she referred to a “threat to life and health” and “threat to living safety” and indicated that she would add a “rain eave cover” and a “removable blocking window” etc on the roof top.

30. By the letter of 9 January 2004, the contractor replied as follows:

“… the developer is very concerned about the query in your letter about the advice on exhaust emission and height of the parapet wall.  The above installations were constructed in accordance with the Buildings Ordinance and have been approved by the relevant Government departments, and the developer is not liable in any respect for the above advice.  However, to manifest the principle of serving the customer first, the developer is happy to gratify its customers’ wishes as far as practicable.  Following discussion with the building architects, the developer has decided to carry out the following improvement works:

1.      heighten the sewage pipe;

2.      erect an aluminum ventilating venetian screen on the wall adjoining the neighbouring unit.”

31. On 11 February 2004, the Appellant signed an undertaking, by which she agreed to accept, as a gift from the developer, an aluminum ventilating venetian screen, to be installed by the contractor.  The relevant repair, maintenance and other costs in future would be borne by the owner.

32. The above correspondence shows that the developer had heightened the exhaust pipes and installed the venetian screen solely because the owner (the Appellant) had complained about the health and safety problem.  The heightening of exhaust pipe and additional erection themselves did not “involve the public facilities of the building”.  The builder had made the alterations at the Appellant’s request, and such alterations had not been pre-approved by the Buildings Department.  There is nothing unfair in requiring the Appellant, as the owner, to demolish the alterations (i.e. the erected structure) and reinstate the premises.

33. I do not agree with Mr Cheung’s argument that the Buildings Department should issue the relevant demolition order to the builder.  It is entirely correct and proper for the Buildings Department to order the owner, who has allowed unauthorized structure to be added to his land, to demolish the unauthorized structure.  If the Appellant feels that the builder should be liable, she may consider bringing a civil claim against the builder.

34. Furthermore, although the Appellant had hired an expert witness to prepare an expert report and testify in court, the expert never provided any information on any “resources” and “technical” problem or difficulty which the Appellant might face if she were to demolish the relevant structure.

35. In my judgment, this ground of appeal cannot be sustained.

Ground (2)

36. Did the Appellant have a reasonable excuse for not complying with the relevant order?

37. Mr Cheung relied on the facts already referred to in Ground (1).  He submitted that, on the question of whether the Appellant had a reasonable excuse, the Magistrate only focused on the letter from the Appellant to the Buildings Department and therefore did not accept the evidence of the Appellant’s husband which was challenged by the prosecution.  Mr Cheung submitted that the Magistrate should have appreciated that the present case was different from ordinary criminal cases in that there was not much dispute on the credibility of the evidence.  Besides what was quoted by the Magistrate in his ruling, the Appellant’s letter also made mention of her appeal to the Buildings Appeal Tribunal, and the letter ended with this statement: “as for the reason why I had to erect a structure on the roof[,] is there a need to further explain to the Government and clearly state the reason?”  Mr Cheung argued that the Magistrate had quoted part of the letter out of context.  He submitted that the quoted part of the letter could, at most, only indicate that the Appellant did initially want to demolish the structures and reinstate the premises, but it could not answer the question of whether the Appellant had a reasonable excuse for not complying with the order.  Mr Cheung contended that a reading of the whole of the letter would reveal that the Appellant did have a reasonable excuse.

38. Mr Cheung submitted that the Magistrate did not understand that the prosecution had a duty to prove that the Appellant did not have a reasonable excuse for not complying with the order.  He cited Halsbury’s Laws of Hong Kong, Volume 23 (2004 Reissue) 365.081-365.083 and the case of Liew Wai Wah v. Public Prosecutor [1969] 1 AC 295 which stated that it had to be shown the Appellant had the relevant intention.

39. Mr Cheung submitted that, had the Magistrate considered the Appellant’s husband’s evidence together with the expert evidence and made an objective analysis thereof, he would have understood the following points:

(1) The ultimate solution to the problem was to relocate and heighten the exhaust pipe, and these had to be done by the developer.

(2) As the developer had expressly stated that it would not follow up the matter, the problem would not be solved by discussing with neighbours and seeking advice from professionals.  In fact, the Appellant had already sought advice from the expert Mr Yung.

(3) The fact that the Appellant had not discussed with her neighbours or sought advice from professionals did not mean that the Appellant had no reasonable excuse for not complying with the order.

(4) If the Appellant complied with the order, she and her family would have to endure the foul smell again and allow their health to be harmed, and there would be no telling when the problem would be eradicated.

40. Mr Cheung contended that, had the Magistrate objectively considered the above points, he should have accepted that the Appellant did have a reasonable excuse, or at least should have held that the prosecution had failed to prove that the Appellant did not have a reasonable excuse.  Apart from giving up on her or her family members’ health and household, no alternative was open to the Appellant but to keep (or at least temporarily keep) the coverand the venetian screen  glass window.

Respondent’s reply

41. Mr Wong submitted that the Magistrate had stated that he accepted the evidence of the expert witness and accorded full weight to it.  The expert witness was of the opinion that the screen could not block the bad smell but could only block the vision and increase security.  The expert described that it was a passive method for the Appellant to erect a closed protective structure to enclose herself in it in order to prevent the smell from rushing in.  The real solution was to relocate and further heighten the exhaust pipe.

42. Mr Wong submitted that the Magistrate knew the offence referred to the Appellant’s refusal to demolish the structures and also understood the problem raised by the expert.  The fact that the Magistrate clearly stated that he had taken the defence case at its highest in considering the charge against the Appellant shows that the Magistrate understood why the Appellant had erected the top cover and the glass window at the back of the venetian screen and had requested the developer to carry out the works.

43. Mr Wong submitted that the Magistrate had explained in his Statement of Findings why he did not accept the reasons given by the Appellant’s husband for refusing to demolish the illegal structures.  In considering whether the Appellant had a reasonable excuse, the Magistrate stated that he had to take into account the Appellant’s resources and the possibility of resolving the problem by legitimate means.  The Magistrate had also explained why he did not accept the Appellant’s allegation that she refused to demolish the relevant structure due to the bad smell.

Judgment

44. It is beyond doubt that the Appellant had complained to the builder about the foul smell problem and that the builder had moved and heightened the exhaust pipe.  As for the venetian screen erected by the builder, obviously this was done as a result of the complaint made by the Appellant about the “safety” problem.  The screen itself could not have blocked the foul smell.

45. I do not rule out the possibility of the exhaust emission at the roof top threatening the health of the Appellant’s family and of the foul smell affecting their normal lives.  Nevertheless, before the Appellant took any action – particularly action which involved erecting any structure – she was under a duty to ensure that the erected structure would not be declared by the Buildings Department as an unauthorized structure.  She simply proceeded to erect the structures without having ever “submitted a plan” for approval by the Buildings Department.

46. As regards why the builder carried out “heightening” and “additional erection” works, I analysed this when I was dealing with Ground of Appeal (1).  The Magistrate had the advantage, which this Court does not have, of observing and hearing the Appellant’s husband’s testimony, and he ruled that the witness was not telling the truth and that his evidence was unreasonable and incredible.  The Magistrate cited an example, namely that it was absolutely clear from the contents of the letter from the Appellant to the Buildings Department that the Appellant was arranging to demolish the cover.  I now set out the relevant part referred to by the Magistrate:

“I am most happy to cooperate with the Government departments and to resolve the problem through communication.  As for the relevant erected structures on the roof top, part of the demolition work has commenced in an orderly manner, and among the first items that have been removed are dangerous articles such as electrical appliances, plugs and cords.  Next are wooden items which would be damaged after getting wet under the rain.  As for the erected structure at the roof top, we are still negotiating with the contractor as this involves payment of the costs for the work already completed and new problems and costs arising from the impending demolition work.  I trust that an agreement would be reached very soon.”

47. The Magistrate stated that, on any view of the letter, it could not possibly be construed to mean a consent to demolish the other parts but not the cover.  The Magistrate regarded the explanation given by the Appellant’s husband as “simply a resort to sophistry”.  The Magistrate also stated that, had the Appellant’s husband not intended to demolish the cover, he would have no reason or need for removing the items attached to the cover such as the electric lights.  The Magistrate stated that the Appellant’s husband was apparently willing to demolish the relevant structure as he very well knew that it was illegal and unsustainable.  As for the reason given by him in the course of giving evidence for refusing to demolish it, it was just an excuse to evade liability.  The Magistrate further stated that, if the situation were as serious as alleged by the Appellant’s husband, it was surprising that he did not discuss with the neighbours.  They could at least  exchange views .  The Magistrate found the Appellant’s husband very evasive and did not accept the evidence which was challenged by the prosecution.

48. The Appellant did, in her letter to the Buildings Department, mention whether it was necessary to state the reasons for  erecting the structure.  However, viewing the letter as a whole, I agree with the Magistrate’s observations and ruling.  The Magistrate had not taken the evidence “out of context” and it was reasonable for him to reject the Appellant’s husband’s evidence that had been challenged by the prosecution.

49. On the issue of reasonable excuse, the Magistrate stated that apart from the Appellant’s views, he also had to consider whether a reasonable man would have thought of taking or at least endeavouring to take reasonable and legitimate measures, and naturally he also had to consider the Appellant’s resources and other factors.  The Magistrate concluded that the excuse given by the Appellant was unreasonable.

50. I agree with the Magistrate’s views.  The Appellant had failed to take or endeavour to take reasonable and legitimate measures.  In fact, in her letter to the builder in November 2004, she stated expressly that she would carry out the “additional construction”, and she had not sought prior approval of the Buildings Department in carrying out the relevant “additional construction”.

51. If an owner, being concerned about the health (and safety) of himself and his family, considers it necessary to carry out certain construction or building works, he must ensure that the relevant construction or building work is lawful.  He should ensure that the work is approved by the Buildings Department and should not, in the absence of legal authority, on his own arbitrarily decide to carry out the additional erection or construction works.

52. In the present case, the Appellant had failed to give a reasonable excuse for not demolishing the unauthorized structure in question.  The prosecution has proved beyond reasonable doubt that the Appellant has committed the two offences.

53. This ground of appeal must also fail.

54. For the above reasons, the conviction is neither unsafe nor unsatisfactory.  The appeal is dismissed accordingly.